A reminder about unfettered constitutional posts

Source– The post is based on the article “A reminder about unfettered constitutional posts” published in “The Hindu” on 15th April 2023.

Syllabus: GS2- Appointment to various Constitutional Posts

Relevance– Independence of institutions

News– Two recent comments of the Supreme Court of India are important. In a hearing of the ‘Sena versus Sena’ case, the Court expressed its “serious concern” over the active role being played by Governors in State politics.

The Court divested the executive of its sole discretion in appointing the CEC and ECs by forming a committee to suggest suitable names to man these constitutional posts.

Why is there a need for independent institutions?

A democracy requires a system of checks and balances. It is necessary to prevent the arbitrary use of power by the elected government of the day.

India’s democracy provides for various constitutional authorities such as the Public Service Commission, the CAG, the ECI, the Finance Commission, and the National Commissions for Scheduled Castes, Scheduled Tribes, and Backward Classes.

The Constituent Assembly of India had recognized the need for such independent institutions to regulate sectors of national importance without any executive interference.

It is necessary that such constitutional bodies are provided with complete independence to enable them to function without fear or favor and in the larger interests of the nation.

What are the provisions in the constitution that provide for the appointment of persons heading the independent institutions?

The Constitution uses simple words such as ‘shall be appointed by the President’ in the appointment of the Prime Minister (Article 75), the Attorney­ General for India (Article 76), the Chairman and other members of the Finance Commission (Article280), the Chairman and other members of the Public Service Commission (Article 316).

However, the words ‘shall be appointed by the President by warrant under his hand and seal’ are used while authorizing the President for appointment of the judges of Supreme Court and the High Court, the CAG and for appointment of the Governor

Similar words have been used in Articles 338, 338A and 338B authorizing the President for appointing Chairman and members of the National Commissions for SCs, STs and

BCs. However, as per the original Article, ‘there shall be a Special Officer for the Scheduled Castes and Scheduled Tribes to be appointed by the President.

How do constituent assembly debates show that it assigns a special status to CAG, Governor and judges of higher courts in appointment related matters?

In the draft Constitution, the article for appointment of the CAG (Article 124) had provided that ‘There shall be an Auditor General who shall be appointed by the President.

An amendment proposed in the Constituent Assembly To this Article for inserting the words ‘by warrant under his hand and seal.

The Constituent Assembly discussed that the Auditor ­General should be always independent of either the legislature or the executive. He is the watchdog of our finances.

The same amendment for the Article related to appointment of Governor in Article 131 of the draft Constitution was moved.

The Constituent Assembly discussed that the President should be free from the influence of the Legislature.

Both amendments were passed.

What is the way forward for appointment of persons heading the independent institutions?

The Constitution affixes the phrase “by warrant under his hand and seal” only for appointment to positions like Judges, the CAG and the Governors. It assigns a special status to distinguish them from other constitutional positions.

Constitutional authorities such as the Judges of the Supreme Court and the High Court and the CAG of India is to be kept free from political or executive pressure.

Appointments of judges and the ECs have been made free from the influence of the executive. But there is a need to set up a well­ defined criteria and procedures for the appointment of the CAG of India.

The process of selecting a person to be appointed as the CAG of India should begin by appointing a committee consisting of the Speaker of the Lok Sabha, the Chief Justice of India, and the Chairman of the Public Accounts Committee to shortlist names for appointment of CAG of India.

A panel of three names should be forwarded to the President for him to make the final selection as in Article 148 of the Constitution of India.

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